The pushback against Aaron Swartz misses the point

Aaron Swartz may be a galvanizing figure for Internet activists, but his exploits didn’t exactly make him popular among copyright holders. In fact, the tributes to Swartz, who committed suicide last week while awaiting trial on computer fraud charges, have started drawing blowback from the defenders of strong copyrights, who argue that Swartz’s efforts to “liberate” documents locked behind paywalls was nothing more than theft.

A good example is an editorial in Friday’s Wall Street Journal -- I’d link to it, but it’s behind a paywall (insert your own snappy one-liner about irony or having the courage of one’s convictions here) -- that opens with a long apologia for copyrights and a denunciation of “e-vangelists like Swartz” who are “oblivious to the economic realities that confront media companies (including this newspaper) or scholarly projects like JSTOR.”

It then observes that Swartz wasn’t charged with copyright infringement.

Ahem.

That’s precisely the point. Led by U.S. Atty. Carmen Ortiz in Boston, federal prosecutors charged Swartz with violating a 1986 law against computer hacking and a 1952 law against committing fraud through a phone line, basing the charges in part on a chillingly expansive view of what “unauthorized access” means. As the Journal goes on to argue, “If copyright can’t safeguard an outfit like JSTOR and prosecutors can’t distinguish real cyber crimes from an abortive political stunt, then it’s another warning that the U.S. legal architecture for intellectual property is out of date.”

The Times’ editorial board offers a similar critique of Swartz’s prosecution, but argues that the problem isn’t antiquated intellectual-property laws -- it’s prosecutors who stretch the definition of “unauthorized access” to fit whatever case is in front of them. Rep. Zoe Lofgren (D-San Jose) is marshaling support for a straightforward fix: rewriting the 1952 and 1986 laws to declare that it’s not fraud just to violate the terms of service or acceptable use policies set (unilaterally) by a website, an Internet service provider or an employer.

As I noted in an earlier post, Swartz is accused of doing more than just violating JSTOR’s terms of service. He also allegedly hid the identity of his computer to circumvent efforts by JSTOR and the Massachusetts Institute of Technology to stop his rapid-fire downloading of academic articles. He even snuck a laptop into a wire closet at MIT to obtain a wired connection to the campus network, avoiding the barriers set up for him on the wireless part of the network.

A judge and jury may very well have found this kind of behavior to be fraudulent. But this aspect of the case raises a larger question: Should prosecutors be able to bring fraud charges against those who hide or spoof their identities online? Anonymous or pseudonymous use of the Internet shouldn’t be a crime in and of itself, even if a site explicitly forbids it (e.g., Facebook). As long as lawmakers are revisiting the computer and wire fraud acts, they should also consider stopping prosecutors before they try to criminalize anonymity online.

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